Contents

Employers' liability

Employers are vicariously liable, under the
respondeat superior doctrine,
for negligent acts or omissions by their employees in the course of
employment.[1] For an
act to be considered within the course of employment it must either
be authorised or be so connected with an authorised act that it can
be considered a mode, though an improper mode, of performing
it.

Courts sometime distinguish between an employee's "detour" or
"frolic". For instance, an employer will be
held liable if it is shown that the employee had gone on a mere
detour in carrying out their duties, whereas an employee acting in
his or her own right rather than on the employer's business is
undertaking a "frolic" and will not subject the employer to
liability.

Neither, generally, will an employer be held liable for assault or battery committed
by employees, unless the use of force was part of their employment
(e.g. police
officers), or they were in a field likely to create friction
with persons they encountered (e.g. car re-possessors). However,
the employer of an independent contractor is not
held vicariously liable for the tortious acts of the contractor,
except where the contractor injures someone to whom the employer
owes a non-delegable duty of care, such as where the employer
is a school authority and the injured party a pupil.

Employers are also liable under the common law principle represented in the
Latin phrase, "qui facit per alium facit per se", i.e. the one who
acts through another, acts in his or her own interests. This is a
parallel concept to vicarious liability and strict liability in
which one person is held liable in Criminal Law or Tort for the acts or omissions of
another.

Principals' liability

The owner of an automobile can be held vicariously liable for
negligence committed by a person to whom the car has been loaned,
as if the owner was a principal and the driver his or her agent,
if the driver is using the car primarily for the purpose
of performing a task for the owner. Courts have been reluctant to
extend this liability to the owners of other kinds of chattel. For
example, the owner of a plane will not be vicariously liable for
the actions of a pilot to whom he or she has lent it to perform the
owner's purpose. In the United States, vicarious liability for
automobiles has since been outlawed with respect to car leasing and
rental in all 50 states.

One example is in the case of a bank, finance company or other
lienholder performing a repossession of an
automobile from the registered owner for non-payment, the
lienholder has a non-delegatable duty not to cause a breach of the
peace in performing the repossession, or it will be liable for
damages even if the repossession is performed by an agent. This
requirement means that whether a repossession is performed by the
lienholder or by an agent, the repossessor must not cause a breach
of the peace or the lienholder will be held responsible.

This requirement not to breach the peace is held upon the
lienholder even if the breach is caused by, say, the debtor
objecting to the repossession or resists the repossession. In the
court case of MBank El Paso v. Sanchez, 836 S.W.2d 151, where a hired repossessor
towed away a car even after the registered owner locked herself in
it, the court decided that this was an unlawful breach of the peace
and declared the repossession invalid. The debtor was also awarded
$1,200,000 in damages from the bank.

Parental
liability

In the United
States, the question of parental
responsibility generally and the issue of parental vicarious
liability for the torts of their children is evolving. What is
clear is that parents can be held liable for their own negligent
acts, such as failure to supervise a child, or failure to keep a
dangerous instrument such as a handgun outside the reach of their
children.

The liability of
corporations in tort

In English law, a
corporation can only
act through its employees and agents so it is necessary to decide
in which circumstances the law of agency or vicarious liability
will apply to hold the corporation liable in tort for the frauds of its directors or senior
officers.

If liability for the particular tort requires a state of mind,
then to be liable, the director or senior officer must have that
state of mind and it must be attributed to the company. In
Meridian Global Funds Management Asia Limited v. Securities
Commission [1995] 2 AC 500, two employees of the company,
acting within the scope of their authority but unknown to the
directors, used company funds to acquire some shares. The question
was whether the company knew, or ought to have known that it had
acquired those shares.

The Privy Council held that it did. Whether by
virtue of their actual or ostensible authority as agents acting
within their authority (see Lloyd v Grace, Smith & Co.
[1912] AC 716) or as employees acting in the course of their
employment (see Armagas Limited v Mundogas S.A. [1986] 1
AC 717), their acts and omissions and their knowledge could be
attributed to the company, and this could give rise to liability as
joint tortfeasors where the directors have assumed responsibility
on their own behalf and not just on behalf of the company.

So if a director or officer is expressly authorised to make
representations of a particular class on behalf of the company, and
fraudulently makes a representation of that class to a Third Party
causing loss, the company will be liable even though the particular
representation was an improper way of doing what he was authorised
to do. The extent of authority is a question of fact and is
significantly more than the fact of an employment which gave the
employee the opportunity to carry out the fraud.

In Panorama Developments (Guildford) Limited v Fidelis
Furnishing Fabrics Limited [1971] 2 QB 711, a company
secretary fraudulently hired cars for his own use without the
knowledge of the managing director. A company secretary routinely
enters into contracts in the company's name and has administrative
responsibilities that would give apparent authority to hire cars.
Hence, the company was liable.

Employers' indemnity

The principle of vicarious liability can also be bypassed with a
legal instrument known as Employers' indemnity. When an employer is
successfully sued, they have the option of suing the tortfeasor for
an indemnity to recover the damages back. This principle is greatly
criticised when used in the case of Lister v Romford Ice Cold
Storage

Ecclesiastical
corporations

In the 2003 decision Doe v. Bennett, the Supreme Court of
Canada ruled that in cases of abuse scandals involving Catholic
priests, liability derives from the power and authority over
parishioners that the Church gave to its clergymen.[2]